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Introducing the new Pennsylvania Congressional map

February 19th, 2018, 3:20pm by Sam Wang

Here’s the new Congressional map for Pennsylvania, drawn by advisor to the court Nate Persily. I think it’s a landmark contribution to the understanding of partisan fairness, in one of the most politically heterogeneous states in the Union – “Pennsatucky.”

For anyone who’s drawn such maps, this particular one is a pleasure to look at. It does a great job at compliance. It splits 13 counties, less than any plan offered to the court. The only plan that splits fewer counties or municipalities is the “compact D gerrymander” that the Princeton Gerrymandering Project posted over the weekend. So in terms of basic compliance, it wins.

But more importantly, this map undoes the effects of population clustering. As we showed over the weekend, it is just possible within the Pennsylvania Supreme Court’s rules to allow a plan that reaches partisan balance, i.e. a 9 D, 9 R outcome for a 50-50 statewide vote. However, those rules bias the range of possibilities in favor of Republicans, so that a Republican gerrymander – one of the proposals on the table – was also a possibility.

It appears as if the advisor was either trying to achieve partisan balance or build competitive races (as opposed to, say, picking a plan that was in the middle of the range of possible maps). His map – and the one we gave over the weekend – show that even under the constraint of compactness and not splitting political jurisdictions, it is still possible to build a map that treats both parties approximately equally. Notably, he did so while keeping most population centers together. This map passes all three of our tests of partisan asymmetry.

This outcome fits with an unspoken principle in the court’s decision of partisan symmetry: if the two sides swapped vote totals, then their seat totals should be swapped as well. This fundamental principle of fairness underlies our proposed standards for detecting gerrymandering, as described in our amicus brief in the Whitford case.

It is commonly claimed that partisan bias arises naturally from the way that voters distribute themselves. Certainly such a bias could be visible if one drew thousands (or millions) of maps at random. But districting is not a random process. It is done by human beings, and reflects real-life political and social considerations. In that respect, we shouldn’t care about millions of maps; we should only care about one map, the one that is drawn. Persily has shown that it is possible to maintain all the old principles of geographic contiguity, and still create an overall map that does not give either party an undue advantage. In my view, this is a big deal because it shows that the ideal of partisan symmetry can be a primary criterion for drawing a map.

It seems clear that the Pennsylvania GOP made a serious tactical error. The governor and Democratic legislators had offered a plan that would have retained some GOP advantage. The new plan erases that advantage entirely. In our analysis, based on the 2016 vote the new map produces 5 Democratic districts, 7 Republican districts, and 6 tossup districts. The maximum likely performance by Democrats in 2018 would be 11 seats, a gain of 6 seats over their current representation. That gain would be one-fourth of the 24 seats they need to win control of the House of Representatives. Of course, some of those gains could also go away in a later year that was good for Republicans. That’s the point of electoral competition.

Tags: 2018 Election · Redistricting

28 Comments so far ↓

  • ArcticStones

    This is great news!

    What options does the Pennsylvania GOP have to litigate this? If so, how likely are they to succeed? Or is there a risk that litigation can be used to “delay” its implementation?
    (Just as Republican lawsuits once delayed the seating of Senator Al Franken…)

    • 538 Refugee

      The US Supreme Court already declined to get involved because of the way the state constitution is written. It sounds like the Republicans may have dragged their feet so they could holler really loud at the results. That’s kinda just my take on it though.

      “GOP leaders have said the lack of guidance is the reason they didn’t start drawing a map in earnest until 48 hours before it was due — a decision that left them no time to get a vote from the Legislature. ”

    • Sam Wang

      Maybe they could claim a Voting Rights Act violation. VRA law is complex. It would be odd to see their side claiming racial vote dilution, but it could work.

    • LondonYoung

      The old PA-2 seems to have become PA-3, so Dwight Evans’ job is in no danger. Given that, I don’t see any urgent reason for SCOTUS to stay on VRA grounds.

    • Sam Wang

      Good point – I didn’t inspect those districts until after writing that comment. In that case, there’s no escape.

    • ArcticStones

      Nonetheless, the Pennsylvania GOP has just announced that they tomorrow will be filing a lawsuit in federal court to stop the redistricting ordered by the Supreme Court. (Surprise!)

      As we know from the Al Franken lawsuits, litigation need not have merit to achieve the desired effect.

    • LondonYoung

      Arctic – in PA the dems control the executive, so they will conduct the elections according to the rules of PA’s dem controlled court. In Franken’s case, the GOP controlled the executive, so the GOP refused Franken an election certificate until ordered to produce one by the MN court.

      The GOP folded in Franken’s case because the US Senate was controlled by dems 59-40, and retains ultimate jurisdiction over its own membership.

    • Pechmerle

      The Penn. legislators will make, in federal court, another form of the argument that lost at the Supreme Court in the Arizona commission case. That is, Penn. intends to argue that “in each state by the legislature” in U.S. Const. Art. I cl. 4, does not mean “court.” In the Arizona case, Ginsburg writing for the majority, opined that “legislature” can mean the people acting through a commission.

      Penn. will try to distinguish that, on the ground that the people acting through the courts doesn’t make sense. A tough argument to sustain, given that (a) the Penn. constitution gives the courts the power to review legislation — with no express exception for redistricting — for compliance with the Penn. constitution and (b) the Penn. Supreme Court is an elected body, and so it actually is the people in action almost as much as the legislature.

      The key for the Penn. legislature is to try to run out the clock for 2018. To do this, they will presumably argue in federal district court in favor of an injunction against imposing the Penn. court map until there is a ruling from the federal court and then appeal to the U.S. S. Ct. All that would easily get them through 2018. However, to get an injunction Penn. needs to show that it is likely to prevail on the merits of its argument. Most commentators think they can’t pass that hurdle.

      There is always the wild card of luck of the draw: the federal district court will be a three judge panel, and two of those judges are designated by the chief judge of the federal Third Circuit. So there is some possibility of a panel that is skewed conservative enough to grant the injunction.
      Either grant or denial of an injunction would be immediately appealable to the U.S. Ct., which might then get into the stay act as it has in Gill and Benisek. All rather convoluted, but it’s what there is for the Penn. legislature to try.

    • Pechmerle

      I was forgetting the Rooker-Feldman Doctrine (q.v.), so ignore my procedural hypothesis above. Under the Rooker-Feldman Doctrine, lower federal courts do not review decisions of state courts (unlike acts of state legislatures, if on federal statutory or constitutional grounds). Rather, a state litigant must go upwards through all available levels of the state courts, as the Penn. legislature has here. Then, if the decision of the highest state court is adverse to the litigant, the litigant must seek a writ of certiorari in the U.S. S. Ct. (if federal jurisdictional grounds exist, as Penn. would assert there is here under Art. I). And at that time – or pending submission of the application for writ – the litigant can seek a stay of the state court judgment from the Circuit justice. That would again be Alito, which doesn’t seem to suggest a different outcome than on Feb. 5.
      But I think it is true that an outcome on a motion such as for a stay is not binding on a subsequent motion; i.e., it’s not part of a final judgment and so is not definitive. So the Penn. legislature can try, and they seem to be saying they will, however quixotic it may be.
      I can’t think how they would avoid the Rooker-Feldman Doctrine, and so get into a lower federal court where they could seek a preliminary injunction. But I wouldn’t doubt that they are thinking as hard as their lawyers can on that.

    • Matthew McIrvin

      Forget litigation; they’re going to try to impeach the judges and replace them with compliant ones.

    • Pechmerle

      They aren’t giving up on litigation. They filed another application at the U.S. S. Ct. for a stay of the Penn. court order again on Wednesday. Why is this time different? They say that the matter is now “riper” because the state court has issued its reasoned opinion and issued its map, and the “irreparable harm” they will suffer in the absence of a stay is more real. The application has again gone to Alito. We’ll see if he does anything different.

      The national Republicans – to be joined by the Penn. Republicans – also say they will file suit in federal district court, arguing there too that the state court has violated the U.S. Const.’s Art. I grant of power to the state legislature to draw districts. For why that shouldn’t work procedurally, see my comment about Rooker-Feldman above. But again – we’ll see.

      As for impeachment of the Penn. S. Ct. judges – how would that really work out? I don’t know enough Penn. law, but usually any vacancies would be nominated by the governor – a Democrat. Since Penn. S. Ct. judges are elected, maybe the governor’s nominees would serve until the next election? Anybody know?

    • LondonYoung,_2017
      The governor (a dem) appoints replacement judges subject to confirmation by 2/3 of the senate. 2/3 of the senate is also what is required to remove a judge from office after impeachment by a majority vote in the house.
      The GOP controls the house.
      The GOP controls 2/3 of the senate.

  • LondonYoung

    On – can I renew my request for a version of the tool based on Cook PVI rather than actual election results?

  • Sheldon Rampton

    Here’s an interesting article about the Pennsylvania gerrymander case:

  • ArcticStones

    So, the next obvious move of Pennsylvania’s elected Republican representative is to … impeach the bothersome State Supreme Court Justices.

    Wow! You really have to give them credit for political creativity. This most certainly is “thinking outside the box … of decency”.

  • Pechmerle

    Higher-level topic: It’s Here! A constitutional challenge to the way the Electoral College works.
    From press release from the Boies Schiller Flexner law firm:

    “A coalition of law firms led by David Boies of Boies Schiller Flexner LLP, and The League of United Latin American Citizens (LULAC), today announced the filing of four landmark lawsuits challenging the winner-take-all method states use to allocate their Electoral College votes. By magnifying the impact of some votes and disregarding others, the winner-take-all system is not only undemocratic, but it also violates the Constitutional rights of free association, political expression, and equal protection under the law. These suits aim to restore those rights nationwide.”

    The challenge focuses on two blue and two red states.

    Query for the math-minded: How would their method have worked out in 2016?
    Query for the law-minded: does this have a ghost of a chance?

    • LondonYoung

      Note that many states (like New Jersey) used to elect all their congressmen as a single slate, winning party take all seats. That system went the way of the dodo bird due to a law passed by congress.

      On math – there is the question of “well, if not winner take all, then what system?”. The back up system has been “one state, one vote”!

    • Pechmerle

      On the legal chances, early comment (e.g. Hasen) is that this has no chance. But it’s an interesting opening of a conversation that hasn’t been aired in this formal manner.

      What system to employ? Here is their complaint, as filed in Mass. They want the Electoral College votes allocated proportional to the state-wide popular vote.

      Is this radical historically? Not really. Maine and Nebraska currently allocate by Congressional district. It would be easy for all states to do that. And it’s already been pointed out that through the 19th century, some states switched back and forth occasionally between winner-take-all and proportional systems, depending on which system the party in power in that state believed would favor their presidential candidate.

    • Pechmerle

      The issue of the constitutionality of winner-take-all allocation of a state’s Electoral College vote has reached the Supreme Court only once before, in 1969. In that case, the Court affirmed without opinion a lower federal court decision that there was no invidious discrimination against voters for the losing presidential candidate in that state by winner-take-all.

      Boies et al. now argue that Bush v. Gore removed any requirement that the discrimination be “invidious.” Interesting, but Bush v. Gore makes no mention of the 1969 case and undoubtedly did not see the issues in the two cases as being at all the same. Commentators are also already pointing out for present purposes the extreme outlier nature of Bush v. Gore. No subsequent Supreme Court case has cited it, for anything.

    • LondonYoung

      Bush v. Gore was assembled in a few days and is a mess. The court should find a pretext to clean it up.

      Boies himself argued that case, so …

    • LondonYoung

      Pechmerle – wanna make sure you know about this page:

    • Pechmerle

      LondonYoung, thanks for that.

  • Pechmerle

    The proceedings in the three-judge federal district court in Harrisburg have begun.

    As I noted earlier, there is a luck of the draw aspect to what judges you get on a three-judge panel for a redistricting case. Here is how that works. The first judge is by truly random assignment, from the district court judges for that district. He turns out, though, to be a G.W. Bush appointee.

    The other two judges are appointed to the panel by the chief judge of the circuit (here, the Third Circuit), one of whom must be a circuit judge in that circuit.

    That chief judge doing the appointing in this matter is a Reagan appointee, and of his two appointments, one is G.H.W. Bush appointee and one a G.W. Bush appointee. Thus, all Republicans.

    Hasen notes that the chief judge of a circuit typically provides for some degree of partisan balance in the selection of judges in election law cases. Hasen says he is not concerned by the all-Republican panel appointed here, since he thinks the legal outcome is so clearly against the legislature. I d not share his confidence on this point, and see these appointments as a win for the legislature on the luck-of-the-draw element.

    So far, what this panel has done is deny a TRO (temporary restraining order). That is not an appealable ruling The panel says it has denied the TRO because it is setting a very expedited briefing schedule on the legislature’s request for a preliminary injunction; a result is expected within a couple of weeks. Grant or denial of the preliminary injunction would be appealable directly to the Supreme Court (as of right, not on discretionary writ of certiorari).

    As we all know, somehow obtaining delay of the Penn. S. Ct. map is the legislature’s best hope here. And meanwhile the clock is ticking, with the governor and the secretary of state proceeding with preparations for elections under the new map.

    • LondonYoung

      So, the new GOP case at the *district* level goes like this:

      The PA court issued its order to redistrict before releasing its opinion. The opinion came out only two days before the deadline. The PA constitution does not permit laws to be passed in only two days. For example, there must be committee meetings, the governor gets 10 days to decide to veto, the legislature gets time to try and override the veto, etc… Thus, the PA court did not allow the legislative process to be followed. No bill was passed, the governor simply told the legislature that a map they were considering would be vetoed even if they passed it. Then the court ordered their own map. Thus, whether or not the court is part of “the legislature” in the sense of Arizona, they aren’t following their own constitution.

      I find it hard to imagine the feds are going to tell the PA court they don’t understand their own constitution.

      The only catch is the (never decided) Bush v. Gore argument over the US constitutional origin of the authority here and if that alters the power of the state judiciary vs. the general assembly. That issue was never resolved since B v G was decided on 14th amendment grounds.

  • 538 Refugee

    Only remotely, tangentially related is the special election coming up for the PA house district. Given its location I’ve heard speculation that Trump announced the tariffs specifically to try and hold this district, an area he won by double digits and is now closer than either side predicted per NPR.

  • Lucy Berlin

    You might be interested in this article from Daily Kos.

    A review of 2018’s stunning special elections results
    By Daniel Donner
    Thursday Mar 08, 2018 · 8:36 AM PST

    I’ve not independently reviewed the stats, but the many graphs are nicely done. I’d love to see your take on the data. … Esp as I worry that articles like this might get Dems complacent, not just hopeful and energized. And I wonder if the RNC and Koch brothers keep graphs like this up on their walls…

    • Sam Wang

      Generally, that is an interesting analysis. However, an exception to the overall pattern is Election Day 2017, a regular election day. In that case there was more media attention – and Democrats did not overperform. So I think that compared with that analysis, there is a significant downside risk for Democrats.

    • LondonYoung

      An observation: Obama’s 2012 margin of +3.9 was only 1.8 points better then Clinton’s 2016 margin of +2.1.
      However, in the linked dailyKos post the 2018 specials have dems outperforming Clinton ’16 by 25 and but Obama ’12 by only 13, for a difference of 12 points.
      So, it seems these 2018 special elections must have taken place in districts where Clinton did very unusually poorly vs Obama.

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